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Fearless Philosophy For Free Minds: More Mandatory Minimums Madness: The “Sexual Predator” Edition

Friday, December 22, 2006

More Mandatory Minimums Madness: The “Sexual Predator” Edition

I have written in the past about the insanity of mandatory minimum sentencing laws on at least two occasions (here, and here). In my previous posts, the minimum sentencing guidelines had to do with the war on drugs. In this latest outrage however, this mandatory minimum sentence has to do with “aggravated child molesting.”

In theory, mandatory minimum sentencing for certain crimes seems like a great idea. The problem with such a “one size fits all” approach is it gives judges absolutely no discretion when it comes to particular cases. No matter how well written or intentioned a law may be, there are always going to be cases where the application of the law is simply unjust. The case of Genarlow Wilson is a perfect example of what I mean.

From The New York Times article “Georgia Man Fights Conviction as Molester”

[Genarlow Wilson] was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year’s Eve party, an offense that constituted aggravated child molesting, even though Mr. Wilson himself was only 17.


Disturbed by Mr. Wilson’s conviction, the Legislature changed the law in March to ensure that most sex between teenagers be treated as a misdemeanor. But the State Supreme Court said legislators had chosen not to make the law retroactive.


Even more confounding, at the time of Mr. Wilson’s offense, a so-called “Romeo and Juliet” exception had already been made for sexual intercourse between teenagers.

“Had Genarlow had intercourse with this girl, had he gotten her pregnant, he could only have been charged with a misdemeanor and punished up to 12 months,” said Brenda Joy Bernstein, Mr. Wilson’s lawyer.

So let me get this straight: Genarlow Wilson is 17 and engages in oral sex with a girl who is 2 years younger than he is. At the age of 15, the girl is not at the legal age of consent in Georgia. However, had the two had “consensual” sex instead of oral sex, Wilson would have been charged with a misdemeanor offense carrying a maximum sentence 1 year but because they didn’t go all the way, Wilson is facing an 11 year sentence and will not be eligible for parole until after he has served 10 years. OR if Wilson chooses, he can have his sentence reduced to 5 to 7 years with a possibility of parole if he agrees to register as a sex offender.

So why won’t Wilson take the deal? According to the aforementioned article, Wilson is quoted as saying the following:

"Even after serving time in prison, I would have to register as a sex offender wherever I lived and if I applied for a job for the rest of my life, all for participating in a consensual sex act with a girl just two years younger than me," he told a reporter for Atlanta magazine last year, adding that he would not even be able to move back in with his mother because he has an 8-year-old sister. "It’s a lifelong sentence in itself. I am not a child molester."
There is no question that Wilson used poor judgment in engaging in oral sex with a girl who was under the age of consent. But he is quite right in making a distinction between a child molester and a couple of horny teenagers. When I think of the term “child molester” I tend to think of an adult (usually middle-aged) having inappropriate sexual contact with a prepubescent child. These are the real sexual predators who should be put away for the rest of their natural lives.

It seems to me that there needs to be a serious discussion about where exactly the line should be drawn. Clearly, children should be safe from predators but at what point is a child an adolescent of an age where he or she can be held responsible for his or her choices? It wasn’t that long ago when children as young as 12 married and started families of their own. If you go far enough back in any family tree, you will find ancestors who married and had children at ages we would today consider taboo.

I am not saying that we should return to a time when children have to grow up so fast, but I do think that there needs to be some common sense in the laws. There should be some sort of sliding scale taking into consideration the ages of the parties involved. Is an 18 year old having sex or sexual contact with 17 year old molestation, regardless of the age of consent? I think not! What about a 30 year old with a 14 year old? I tend to think so.

There seems to be no clear answers; what might seem reasonable to me might not seem reasonable to you. When a “zero tolerance” policy in the form of mandatory minimum sentences is in play, there can be no thoughtful discussions in the jury room. It’s all or nothing. According to the article, had the jurors known that Genarlow Wilson would serve 11 years for his offense, most if not all of them would not have convicted him.

Genarlow Wilson has already served nearly 2 years for this offense. Does he really need to serve another 8 to teach him a lesson? Alternatively, should he be required to register as a sex offender for the rest of his life? The answer to both of these questions depend on whether or not one believes that Genarlow Wilson is a threat to children based on his actions as A 17 YEAR OLD WITH A GIRL WHO WAS ONLY 2 YEARS YOUNGER THAN HIM. If you ask me, he has already done enough time.


Blogger T. F. Stern said...

You state the information very well, unfortunately we live in a world run by the insane. There is no tolerance, something which we used to call logic or common sense. The same is true at most levels of the system; from schools where taking aspirin or Tylenol is equated with marijuana, heroine or crack cocaine. A key chain pocket knives are equal to a machine gun under the same lack of tolerance.

I was in a pool of potential jurors on an aggravated sexual assault of a child. The base facts that were explained prior to questioning any of us; the suspect was in his 30’s, held a knife to a 4 year old to keep her quiet while he penetrated her multiple times in various ways that only a monster could have imagined. I disqualified myself when I was asked, “If the suspect is found guilty as charged, could you consider probation as opposed to prison since the law provides for a wide range of possible punishment?”

My honest answer was, “No.”

The problem with setting minimum, or maximum sentences for that matter, as mandatory shows a lack of understanding by those writing the laws. Maybe such insanity is intentional, a means of destroying the judicial system so that our society will collapse; speculation at best. A better guess is that we keep electing inferior folks to represent us and then put them back in time after time because they deliver “pork” to the district and each time they return they have even more seniority, more power to deliver pork; but that’s just an opinion.

11:19 AM  
Blogger Stephen Littau said...

Thanks for your comments T.F., I especially like hearing from your perspective on my criminal justice posts. I’m in complete agreement with you on this flawed logic of “zero tolerance” wherever it is applied be it the schools, work, or criminal law. Zero tolerance is a very lazy way to look at the world. To most thinking people, there is no way one could equate an aspirin with crystal meth or believe that the case I wrote about can be anyway compared to the one you described. Raping a 4-year-old girl at knife point isn’t even in the same moral universe as a 17-year-old having oral sex with a 15-year-old. I don’t know if this was the original intent of the law or if it’s simply a result of unintended consequences. I believe that there is an exception to every rule; zero tolerance does not account for any exceptions.

With regard to how you handled your jury duty…that’s a tough one. I think I would have had to be a little dishonest on that question. I could justify it by thinking I could “think about probation” for at least a second (think about the consequences of probation vs. incarceration). I think it’s a shame that jurors are disqualified by such questions. Another annoying question is the one were they ask if you would follow the judge’s instructions. My honest answer would have to be “it depends on the instructions.” If I found the judge’s instructions in violation with my own understanding of right and wrong or would force me to make a decision that violated my beliefs I would have to honestly say “no.”

What prosecutors and defense lawyers want are jurors who can be swayed with emotion and fallacious logic. We are exactly the kind of people they do not want to have on juries.

1:06 PM  

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